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9 August 2015

The 857-Site Porn Ban and the Contours of Indian Public Discourse

The Indian government, as everyone who’s had a cursory look at the news recently knows by now, seems to have attempted to ban over 857 websites which supposedly host pornographic content. According to what purports to be a leaked document, internet service providers were reportedly asked to ensure the ‘disablement’ of websites listed in the government’s order under Section 79(3)(b) of the Information Technology Act, 2000, ‘as the content hosted on these websites relate to morality, decency as given in Article 19(2)of the Constitution of India’.

Unsurprisingly, the order caused outrage once its effects became apparent with a number of sites, not all of which were porn sites, becoming inaccessible. And ever since, there has been a good deal of confusion seemingly caused by inconsistencies between what ISPs are ostensibly required to do, what ISPs presumably want to do, what the government appears to want ISPs to do, and what the government is willing to be seen telling ISPs to do. Vagueness is the order of the day particularly in public discourse courtesy, in no small measure, a lack of clarity about what the law says on the matter.

Indian public discourse, for some time now, has had the unfortunate tendency to amalgamate normative law dealing with the law as it should be, and positive law as it actually is. The result, in relation to discussions on the banning of pornography, is that one often hears clarion calls against censorship coupled with claims that a particular act to restrict porn is illegal. In this case, that the government has no standing to ban porn. One could go back to core statute and attempt to make an argument saying that porn is not ‘obscene’ in the terms contemplated by in the Indian Penal Code, 1860, and that it is therefore unaffected by the provisions against the dissemination of obscene content in the Code, although to make such an argument in India, given what we like to believe are community standards of morality, is likely to be ludicrous, not to mention that it would not be supported by the Information Technology Act.

If we are to accept that explicit content which serves no social, medical or artistic purpose is, for all practical purposes, to be considered obscene in India, and that its dissemination is illegal online, we ultimately come to Section 79 of the IT Act under which the ‘porn ban’ order has been issued. In relevant part, and without getting into the nuances of the law, this provision says that intermediaries will not be liable for (illegal) third-party content they unknowingly disseminate if they comply with the requirements of and guidelines under the Section. These guidelines are the Intermediary Guidelines, 2011, which, read along with the statute itself and the recent Supreme Court judgment in Shreya Singhal, require intermediaries to expeditiously disable access to pornographic (and other prohibited) third-party content upon learning of it either through a court order or through a notification by the appropriate government or its agency. If intermediaries fail to do so, they stand to lose the protection of the ‘safe harbour’ articulated in Section 79(1) of the IT Act which keeps them from being held liable for having disseminated prohibited third party content.

The structure of the Intermediary Guidelines is such that intermediaries do not have an obligation to remove all impugned content but only impugned content that is also prohibited, which may explain the government reportedly having told intermediaries to decide whether or not to disable access to the websites listed in its now-infamous order. The trouble, however, is that if intermediaries choose not to disable access to the websites, should the content accessible through them later be held to have been prohibited under the Intermediary Guidelines by a court of law, the intermediaries would likely have lost their ‘safe harbour’ protecting them from liability for the dissemination of pornography.

Under these circumstances, it is unsurprising that intermediaries would want to play it safe and continue to disable access to content much of which is almost certainly prohibited by law. That said, there is a problem with the structure of the law at a practical level: asking intermediaries to judge content and possibly shoulder criminal liability should they make a mistake determining the legality of content effectively ensures that intermediaries would have little incentive to ‘support free speech’, as the phrase goes. And not having all ‘blocking orders’ be issued in a transparent matter is not conducive to free speech either.

That said, the words of the ‘porn ban’ order, if the leaked document is accurate, closely mirror the words of Supreme Court in the Shreya Singhal decision, which stated in Para. 119(c): “Section 79 [of the IT Act] is valid subject to Section 79(3)(b) being read down to mean that an intermediary upon receiving actual knowledge from a court order or on being notified by the appropriate government or its agency that unlawful acts relatable to Article 19(2) are going to be committed then fails to expeditiously remove or disable access to such material [would cause the safe harbour in Section 79(1) to not apply to it]. Similarly, the Information Technology “Intermediary Guidelines” Rules, 2011 are valid subject to Rule 3 sub-rule (4) being read down in the same manner as indicated in the judgment.” (Emphasis added.)

There is little doubt that the law itself is not ideal. It does not, however, follow by extension that the order of the government is necessarily an illegal order; it simply appears to be a badly thought out order, issued without transparency or careful fact-checking, under a law which does not serve the ends of free speech well. It is an order which deserves criticism as does the structure of the law itself. As long as the law is what it is, the general public remains vulnerable to the effects of entirely legal and possibly indefensible orders possibly such as the one relating to the current ‘porn ban’. That an attempt has been made to disable access to clearly illegal content isn’t so much the problem as that, from the point of view of positive law, the attempt has been based on questionable evidence (given that not all the sites listed in the order are pornographic) and that the attempt has lacked transparency.

Unfortunately, our public discourse on the ‘porn ban’ and pornography law in general barely distinguishes between problems with the law as it is and ideas relating to the law as it should be. There are questions about whether pornography and its dissemination should be banned at all, whether we should be using a nineteenth century code of morals to determine what is appropriate in the twenty-first century, and precisely what we mean by ‘pornography’ in the first place. If the dissemination of pornography is to be legal, there are questions about how that legality should be structured so that it does not become legal to disseminate explicit cinematograph content which has been either filmed or disseminated without the consent of those who feature in it. There are, in theory, already safeguards in place relating to child pornography but there are no safeguards worth mentioning targeting non-consensual adult pornography whether in terms of revenge porn (with disgruntled former partners disseminating explicit images), trophy porn (with rapists filming and disseminating rape), or other forms of non-consensual porn.

If there is talk about pornography in Indian public discourse, it is talk about consumers of porn, how porn affects them (or doesn’t), and the extent of violence which is acceptable in porn (itself, one might argue, a form of moral policing no more defensible than attempts to suppress all explicit content). There is almost no recognition worth mentioning of the rights of those who appear in pornography.

And that is where the contours of the debate must change: if we are to talk of pornography and the law in meaningful terms, we need to recognise that bland, overarching statements against the spectre of censorship are almost meaningless unless they are accompanied by a robust understanding of the law. And that for cinematograph pornography to be defensible, it must recognise the rights of those who appear in it. Quite simply, filmed real rape (as opposed to consensual simulated rape), for example, cannot be acceptable porn, and there can be no legitimate free speech right to watching another person be violated for one’s own entertainment.

At the moment, public discussions on pornography and the law are often almost all sound and fury with very little substance. Outraged sloganeering alone though is no substitute for actually addressing the legal and human rights issues which are raised by the dissemination of pornography.

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